JUDGMENT
1. This is a defendant's appeal arising out of a suit for declaration. The relationship between the parties will appear from the following pedigree.
KISHEN NARAYAN |
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2. Prasadi Lal died about 1897 leaving his son, Gaya Prasad who was about 1 1/2 years old at the time. After that Kundan Lal died about 31 years ago leaving Ram Dayal his son, his other son Shib Sahai having predeceased him. Ram Dayal died leaving his son Ram Swarup, defendant No. 1, who instituted in 1922, a suit against Gaya Prasad, defendant No. 2 for rendition of accounts. Gaya Prasad on the other hand filed a suit for partition of the alleged joint family property against Ram Swarup, defendant No. 1. On April 3, 1922, the suit instituted by Gaya Prasad for partition was dismissed. Gaya Prasad preferred an appeal to this Court which was dismissed on November 1-1, 1927. The suit which Ram Swarup, defendant No. 1, had instituted against Gaya Prasad was decreed ex parte against him on September 22, 1924. Gaya Prasad made an application for setting aside the ex parte decree which was dismissed by the first Court. Against that order Gaya Prasad preferred an appeal which was dismissed by this Court on September 22, 1924. Final decree for a sum of Rs. 10,000 was passed in favour of Ram Swarup against Gaya Prasad on August 16, 1926. Ram Swarup applied for execution. Some properties were sold and purchased by Ram Swarup himself. Some other properties which have been attached have still to be sold and execution proceedings are still going on.
3. Jagdish Prasad, a minor son of Gaya Prasad, defendant No. 1, instituted the suit which has given rise to this appeal. He alleged that Ram Swarup, defendant No. 1, and Gaya Prasad, his (plaintiff's) father were members of a joint Hindu family and the property attached and sold was ancestral joint family property, that Gaya Prasad did not prosecute the two above-mentioned cases properly and that, therefore, he (plaintiff) was not bound by the decree passed in favour of the defendant No. 1 against his father Gaya Prasad. He, therefore, asked for a declaration to this effect and prayed that one-half share in the properties in suit owned by him and his father be set apart by partition. In the alternative he asked for a declaration that he was entitled to one-fourth share in the properties and prayed that the same may be partitioned. The suit was contested by Ram Swarup, defendant No. 1, on several grounds, his principal plea being that he and Gaya Prasad were separate in estate and that the decrees in the aforesaid two suits were binding on Jagdish Prasad, plaintiff. The Court below found that Gaya Prasad and Ram Swarup were separate, but it held that the decrees in favour of defendant No. 1 could not be executed against one-half share of the plaintiff in that property whieh Gaya Prasad and the plaintiff held jointly until the defendant No. 1, could prove that such property was also liable.
4. Against the decree passed by the Court below Ram Swarup preferred the present appeal on April 24, 1929, and on July 12, 1929; cross-objections were tiled on behalf of Jagdish Narain minor plaintiff. On October 10, 1929, Jagdish Narain, died and Musammal Bhagwandei his mother applied for substitution of her name, Ram Swamp, defendant No. 1, objected to this application on the ground that Jagdish Prasad was a member of the joint family with his father and his interest in the property in dispute devolved on the latter by survivorship and therefore Musammat Bhagwandei had no right to be impleaded as the legal representative of Jagdish Narain. This Court remitted the following issue to the Court below: Whether Musammat Bhagwandei mother of the deceased minor Jagdish Narain is a legal representative for the purposes of this suit? The lower Court returned a finding to the effect that as JagJish Narain died in a state of jointness with his father Gay a Prasad, his mother could not be his legal representative for the purposes the suit. The learned Judges who heard the application of Musammat Bhagwandei asking that her name be, substituted for Jagdish Narain did not decide the question as to whether or not she was the legal representative of the deceased. They directed that tier name be substituted in place of the deceased so that the appeal may proceed "although ultimately it may be found that the suit should be treated as having abated".
5. The contention of the appellant is that having regard to the turn which the events have taken since the tiling of the appeal, it should be allowed. The learned Counsel for the appellant relies on a case decided by a Bench of two learned Judges of this Court reported in Padaratk Singh v. Raja Ram 4 A. 235 A.W.N. 1882, 29, which certainly supports his contention. In that case it was held that where a Hindu minor, of whose behalf a suit to set aside his father's alienation of joint ancestral property had been instituted, died pending the appeal, the right to maintain the suit lapsed with his death as he never acquired any individual separate interest in the joint property. It was also held that the "right to sue" to set aside an alienation made by his father being a personal one, his mother could not continue the suit as his heiress. But it seems to us that the learned Judges overlooked the fact that the plaintiff respondent (son,) had died after the decree and pending the appeal. They treated the appeal as a continuation of the suit and held chat:
whatever right to sue existed was personal to the minor Raja Ram, that Atanti Kuer (his mother) is not his heir, and therefore Cannot continue the suit which should be dismissed.
6. In its result the decision was probably right, but the ground on which it proceeded cannot hold good, at any rate, incases governed by the Civil Procedure Code of 1903. Order XXII, Rule 11, provides:
in the application of this order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal.
7. We think the grammatical variations of these words have to be similarly treated: "Right to sue" should be taken to mean "right to appeal" where a party dies after decree in the suit, but pending appeal. When a Hindu son, being joint with his father, has obtained a decree in a suit brought by him to challenge an alienation by the father as a decree passed against his father and dies during the pendehey of the appeal, the decree appealed from cannot be affected unless it is reversed or interfered with by the decree in appeal. The abatement of the appeal or the death of the plaintiff-respondent cannot alter what is an accomplished fact, viz., a decree in his favour even though the original right to sue was personal to him. Once this right has been vindicated and a decree passed in his favour, his legal representatives can avail themselves of it for the benefit of his estate, so far as his death does not deprive them of the fruits of such decree. In such a case the "right to appeal" survives to the opposite party against the legal representatives of the son (plaintiff-respondent) and it is imperative on the appellant seeking a reversal of the decree to bring his legal representatives on the record.
8. The expression "Legal representative" is defined in Section 2(ii) as a person, who in law represents the estate of a deceased person. So far as his interest in joint family property is concerned, it survives to the other members of his family. His legal heirs and assigns represent the rest of his estate, whatever it may be. Ordinarily the Court is not justified in embarking on an inquiry as to whether the deceased has left a separate estate to be represented by his heirs and assigns and does well to allow such heirs and assigns to be brought on the record in addition to two sets are different individuals so as to give them an opportunity of supporting the decree appealed from for the benefit of his estate.
9. In the case before us the mother of the deceased has been impleaded and is entitled to be sued, in support of the decree. So is the father who has been a party throughout. There is no question now of the deceased's right to sue, a decree having been passed in his favour. The defendant has the right to appeal and seek reversal of that decree on the merits of the case as they are in the altered circumstances brought about by the death of the original plaintiff. The decree appealed from is as follows:
the plaintiff's claim for partition against defendant No. 1 is dismissed, but it is declared that decree No. 127 of 1922 is not binding on the plaintiff and his half share in the property held by him jointly with Gaya Prasad cannot be sold in execution of the said decree unless and until Ram Sarup, defendant No. 1 proves the existence and extent of the liability of Gaya Prasad, defendant against the plaintiffs. Parties to bear their own costs.
10. It is clear that the person who alone could have the benefit of the declaration granted by the decree, having died, the decree has become infructuous or nugatory. The decree merely conferred immunity on his interest in the joint family property against the adverse effects of the decree against the father, but with his death his interest in the joint family property ceased to exist. It follows that any declaration with reference to that interest is meaningless. The result is that the appeal succeeds on the merits and is allowed. The decree appealed from is reversed. The parties shall, pay their own costs throughout. The cross-objections filed by the respondent are dismissed.